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When Can a Contractor Be Sued for “Attractive Nuisance”?


Construction sites are dangerous places for people who lack the proper training. This especially includes children. And conversely, children pose a legal risk for construction companies should they injure themselves at a job site.

Under normal circumstances, a property owner or contractor cannot be held liable for injuries sustained by “trespassers.” In other words, if someone enters a construction site without authorization and gets hurt, that is basically their own fault as far as the law is concerned. But the law makes an exception for what is known as an “attractive nuisance.”

An Exception Designed to Protect Children

As the Florida Supreme Court has explained, attractive nuisance is a legal doctrine that “imposes a duty on a landowner or occupant, to trespassing children, that would otherwise not exist under circumstances of non-liability to trespassers.” Basically, this doctrine means that the owner or contractor on a construction project needs to anticipate the possibility that young children might try and gain access to the site. If the owner or contractor then does not take “reasonable precautions” to protect against such trespassing, they can be held responsible, as children are usually considered incapable of judging the risks for themselves.

This last point is critical. The attractive nuisance exception only applies when “the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it.” This is based on a 1990 state Supreme Court decision, Martinello v. B & P USA, Inc., which clarified that if a jury believes the child “does realize the risk,” then they should be considered an “ordinary trespasser.”

The Martinello case involved a 10-year-old boy who entered a construction site with a friend to play on some unfinished houses. The boys climbed the ladder to the roof of one of the houses. As the child stood up, he fell from the roof and sustained injuries.

The child’s father subsequently sued the contractor under the theory of attractive nuisance. The defendant tried to preempt this claim by admitting ordinary negligence and asking the jury to determine the child’s comparative fault. The jury ultimately found the defendant just 20-percent responsible for the child’s injuries.

On appeal to the Florida Supreme Court, the father argued he should have been allowed to present his attractive nuisance theory to the jury, notwithstanding the defense’s admission of ordinary negligence. The Supreme Court agreed, noting that the plaintiff was entitled to “choose the theory under which this case was to be tried,” and ordered a new trial.

Speak with a Jupiter, Florida, Construction Attorney Today

An attractive nuisance lawsuit can prove quite costly for a construction project owner or contractor. That is why you need to take such claims seriously. If you need advice or assistance from an experienced Florida contractor representation lawyer on handling any type of claim related to your work, contact Linkhorst Law Firm, P.A., today to schedule a consultation.



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